Cheney v. Cheney (In re Cheney's Estate)

• Decision Date: 17 January 1907
• Citation: 78 Neb. 274,110 N.W. 731
• Parties: IN RE CHENEY'S ESTATE. CHENEY v. CHENEY ET AL.
• Court: Nebraska Supreme Court

78 Neb. 274

110 N.W. 731

IN RE CHENEY'S ESTATE.CHENEY

v.CHENEY ET AL.

Supreme Court of Nebraska.

Jan. 17, 1907.

Syllabus by the Court.

Where no reply is filed, and a cause is tried and submitted on the theory that a material allegation of the answer is in issue, a claim that such allegation stands admitted comes too late, when made for the first time after verdict.

Where the mental capacity of a testator to make a will is put in issue when the will is offered for probate, a question, calling for the opinion of a witness as to whether, at the time the will was made, the testator had sufficient mental capacity, or was able to make a last will and testament, is improper, and the answer should be excluded.

An objection to such question, that it is incompetent and calls for the opinion of the witness, is sufficiently specific.

Where a party objects to the reception of such evidence, and preserves his exception, he does not waive the error by subsequently introducing similar evidence for the purpose of meeting his adversary's case, rebutting the evidence to which he excepted, but without any intention of abandoning his exceptions.

Commissioners' Opinion.DepartmentNo. 2.Appeal from District Court, Butler County; Evans, Judge.

In the matter of the estate of Milton Cheney, deceased.From a judgment admitting the will to probate on the application of Marilla Cheney, Elihu Cheney and others appeal.Reversed and remanded.L. S. Hastings, for appellants.

C. H. Aldrich and L. B. Fuller, for appellee.

ALBERT, C.

This is an appeal from a judgment admitting a will to probate.The will was contested on the ground that at the time it was made the testator was not of sound and disposing mind, and that in the making thereof he was unduly influenced by his wife, who is the proponent and principal beneficiary.

One question now argued at length was presented to the trial court by a motion on behalf of the contestant for judgment notwithstanding the verdict.This motion is based on the fact that no reply was filed by the proponent denying the allegations of undue influence.The record shows that the cause was tried and submitted to the jury on the theory that those allegations were denied.The question therefore was raised too late.Pokrok Zapadu Publishing Company v. Zizkovsky, 42 Neb. 75, 60 N. W. 358.

A more serious question arises from the admission of certain evidence offered by the proponent.She called several witnesses to testify as to the mental condition of the testator at the time the will was made.One of these witnesses, after testifying to his acquaintance with the testator, and to certain facts and circumstances sufficient to enable him to form an opinion as to the testator's soundness of mind, was asked this question: “Now you may state whether or not on February 20, 1897[the date of the will] in your judgment Milton Cheney[testator] was able to make a last will and testament.”An objection was interposed by the contestants which was overruled, and the witness answered: “He was.”A similar record was made with respect to at least three other witnesses produced by the proponent, and the case was submitted to the jury on the theory that such opinions were competent evidence on the question of testamentary capacity.

The contestants contend that the court erred in overruling their objections to the question put to these witnesses, calling for an opinion as to the testamentary capacity of the testator, and we think their contention is well founded.The question required the witnesses to usurp the functions of both court and jury, because it required them to determine the degree of mental capacity required to make a will, which is a question of law, and whether the testator, when the will was made, was possessed of such capacity, which was the principal issue for the jury to determine.As has been said: “Whatever liberality may be allowed in calling for the opinions of experts or other witnesses, they must not usurp the province of the court and jury by drawing those conclusions of law or fact upon which the decision of the case depends.”Jones on Evidence, vol. 2, § 374.Dealing with the precise question now under consideration, the court, in Kempsey v. McGinniss, 21 Mich. 123, 143, said: “* * * If each witness is allowed to fix his own legal standard of testamentary capacity, no two of them will be likely to fix upon the same, and there may be an apparent agreement while they differ in fact, and an apparent conflict when there is a real coincidence in opinion, and the jury have no means of knowing the real meaning of the witnesses or judging of the value of their testimony.”

The same question was under consideration in May v. Bradlee, 127 Mass. 414, where the court said: “What degree of mental capacity is necessary to the making of a will is a question of law, which was not to be determined by the witness, and as to which he could not be assumed to be informed, unless the legal requisites of testamentary capacity...